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Citation:George Rutherglen, The Rule of Recognition inReconstruction: A Review of Secession on Trial: TheTreason Prosecution of Jefferson Davis, 103 Va. L. Rev.Online 72 (2017)Provided by: University of Virginia Law Library

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VIRGINIA LAW REVIEW ASSOCIATION

VIRGINIA LAW REVIEW ONLINE

VOLUME 103 DECEMBER2017 72-93

ESSAY

THE RULE OF RECOGNITION IN RECONSTRUCTION: A REVIEW OFSECESSION ON TRIAL: THE TREASON PROSECUTION OFJEFFERSONDAVIS, BY CYNTHIA NICOLETTI

George Rutherglen.

INTRODUCTION

In this book,' Professor Cynthia Nicoletti demonstrates, throughan examination of the historical record that leaves no stoneunturned, that secession remained an open question after the CivilWar. Victory in the Civil War had established de facto Unionauthority over the former Confederate states, and had made theillegality of secession a foregone conclusion, at least in the eyes ofalmost all observers today.2 Perceptions differed at the time,however, over the legal implications of military victory, and manyprominent politicians, lawyers, and judges could not figure out howto translate de facto Union authority into the de jure illegality ofsecession.3 Legal theory at the time did not have the resources toabsorb the implications of "trial by battle" as a necessary element ofthe rule of law.

* John Barbee Minor Distinguished Professor of Law and Barron F. Black ResearchProfessor, University of Virginia School of Law. I would like to thank participants indiscussions at the University of Virginia School of Law and Betsey Hedges for her workas a research assistant.

1 Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis(2017).

2 See id. at 3 & n.7.3 Id. at 84-120 (discussing the Civil War as a trial by battle).

72


2017] The Rule of Recognition in Reconstruction 73

Nicoletti recounts all this in a dramatic account of the treasonprosecution of Confederate President Jefferson Davis that proceedssimultaneously at two extremes: practical tactics in litigation andhigh principles of constitutional law. Delay, deception, and encodedcommunications with his client formed the core of Charles O'Conor'sstrategy in defending Davis. Nicoletti brings O'Conor back to life asone of the leading lawyers of his generation, who nevertheless heldirredeemably racist and secessionist views.

These views drew him to the defense of Davis, which he managedbrilliantly, and, because of concerns about leaks to the prosecution,executed almost single-handedly.4 Putting O'Conor's reactionarypolitics to one side, his success in preventing the trial and convictionof the last leading Confederate to be apprehended by Union forcesdeserves grudging admiration for his skills as an advocate.

O'Conor did not lack for worthy opponents in the Davis litigation.William Evarts and Richard Henry Dana, among other leadingattorneys, handled the prosecution and the political negotiationsthat attended the prosecution, such as the crucial decision to tryDavis before the federal court in Richmond instead of before amilitary commission.5 Issues such as those led directly to amultitude of constitutional questions, from technical questionsabout the proper venue for Davis's trial to the fundamental questionof the legality of secession.

Evarts and Dana were up to the task of addressing thesemomentous issues-Dana had argued The Prize Cases,6 which alsoconcerned the status of the Confederate states during the CivilWar-but they were trapped by the prospect that a jury inRichmond would acquit Davis on the ground, avowed or not, that hedid not commit treason because secession was legal. They feared ajury would find Davis could not have committed treason against theUnited States because he did not "owe allegiance" to the UnitedStates after his home state, Mississippi, seceded from the Union.

At the level of constitutional principle, Nicoletti engages with thedilemma the lawyers faced in attempting to reconcile the rule of lawwith the verdict of the Civil War. Modern lawyers and legal theorists

4 Id. at 69.

s Id. at 39-49, 225-29.6 67 U.S. 635, 650 (1862).


74 Virginia Law Review [Vol. 103:72

do not find this dilemma as intense as their predecessors inReconstruction did. It might just be that the distance of time hasforeshortened our view, collapsing the years of constitutionaluncertainty between General Robert E. Lee's surrender atAppomattox Courthouse and the Supreme Court's pronouncementin Texas v. White that "[t]he Constitution, in all its provisions, looksto an indestructible Union, composed of indestructible States."7 Theresolution of the great question of secession through "trial by battle"seems to amount to simple, unproblematic realism today. Nicolettidispels any such anachronistic attribution of views prevalent todayto actors a century and a half ago-they were deeply troubled thatthe settlement of the question of secession by the outcome of theCivil War "destabilized the rule of law in the United States."8

Yet her book raises a nagging doubt. Maybe the lawyers and legaltheorists then were wrong in insisting upon an irreconcilableconflict between the rule of law and trial by battle. They did not fullyappreciate how the first is possible only because of the second: therule of law presupposes a legal system embedded in and dependentupon social facts and political structure. In particular, the dominantmodern form of legal positivism, derived from the work of ProfessorH.L.A. Hart, places a social "rule of recognition" at the foundation ofany legal system and makes it the basis from which all other legalnorms, including constitutional principles, are derived9 AlthoughHart's view has been revised by later positivists, two central tenetsof his theory have remained intact: first, that law has its foundationin customary practice; and second, that customary practice consists(1) in prevailing acceptance of the rule of recognition bygovernment officials and (2) in obedience to the resulting regime oflegal rules by the population at large.10 "

Variations on modern positivism, including some made by Harthimself, differ over how much the rule of recognition incorporatesmorality, what the precise content of the rule of recognition is, and

7 Texas v. White, 74 U.S. (7 Wall.) 700, 19 L.Ed. 227, 237 (1868).8 Nicoletti, supra note 1, at 120.

9 H.L.A. Hart, The Concept of Law 100-10 (3d ed. 2012).

10 Id. at 116-17.



how it identifies the other rules in a legal system." Nevertheless,any of these variations has the same implications for the legaldilemma of secession after the Civil War: if the war changed the ruleof recognition to take secession off the table, then constitutionaldoctrine had to change accordingly. The question is how changes inthe rule of recognition altered constitutional law.

Some of the light cast by modern legal positivism on this issuemight reflect harshly on the rule of recognition itself and,specifically, how well it identifies the other rules in a legal system.12

Nevertheless, these problems pale in comparison to the problemswith the reasoning in Texas v. White. The opinion, handed down bythe Supreme Court in 1868, does not contain much in the way ofreasoning to support its resounding pronouncement of "anindestructible Union, composed of indestructible States."13 It relieson the Articles of Confederation to support the premise that theUnion originally was declared to be "permanent"14 and then wasmade "more perfect" by the Preamble to the Constitution.15 Theopinion simply ignores the fact that the Constitution took effectcontrary to the terms of the Articles, which required unanimityamong the states for any amendment,16 because the Constitutionrequired approval of only nine of the original thirteen states tosupersede the Articles.17 The Court's own reasoning calls attentionto the fact that the Union in the Articles was not permanent at all,but expired with the ratification of the Constitution. This solecismmight have been forgiven in a political speech, as it was whenLincoln made virtually the same argument in his First Inaugural

11 See Matthew D. Adler & Kenneth Einar Himma, Introduction to The Rule ofRecognition and the U.S. Constitution xiii, xviii-xxii (Matthew D. Adler & Kenneth EinarHimma eds., 2009).

12 See Scott J. Shapiro, What Is the Rule of Recognition (And Does It Exist)?, in TheRule of Recognition and the U.S. Constitution, supra note 11, at 235-68.

13 White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 237.

14 Articles of Confederation of 1781, art. XIII.

15 U.S. Const. pmbl. The phrase "perpetual union" also appears in the title of theArticles of Confederation: "Articles of confederation and perpetual union between thestates of .... "Articles of Confederation of 1781, pmbl.

16 See Articles of Confederation of 1781, art. XIII.

17 U.S. Const. art. VII.



Address.18 But it deeply mars any judicial opinion attempting torestate the fundamental principles of constitutional law.

Dissatisfaction with this flawed reasoning has led manycommentators, both then and now, to seek better reasoning.19 Thiseffort has not been successful. Appealing simply to the verdict of"trial by battle," without articulating its consequences for legaldoctrine, begs the question: how can the fact of military victorychange the principles upon which the rule of law relies?

Appealing only to the adoption of the Thirteenth, Fourteenth, andFifteenth Amendment ignores the problematic process by whichthey were adopted. The Amendments were approved by sessions ofCongress that did not seat legislators from the former Confederatestates and that forced those states to ratify the amendments as acondition of regaining their seats. Apart from the obviously coercivenature of this process, it also denied the former Confederate statesequal status as states in the Union.

On the dominant Republican view in Reconstruction, the formerConfederate states had always remained in the Union and yetbecause of attempted secession could be denied equal participationin approving the new Amendments to the Constitution.20 Althoughthe process of proposing and ratifying those Amendments nominallyconformed to Article V of the Constitution, it depended uponcoercion exercised against the former Confederate states. Analternative view that conceives of the Confederate states as"conquered provinces," equivalent to the territory of conqueredforeign nations, presupposes that those states were successful inleaving the Union. This view justifies Military Reconstruction but atthe cost of abandoning the Union's opposition to secession

18 See Abraham Lincoln, First Inaugural Address, in 4 The Collected Works ofAbraham Lincoln 262, 264-65 (Roy P. Basler ed., 1953).

19 See Nicoletti, supra note 1, at 3 & n.7; Mark R. Killenbeck, Political Facts, LegalFictions, in Nullification and Secession in Modern Constitutional Thought 223, 223-24,236-38 (Sanford Levinson ed., 2016); Sanford Levinson, The 21st Century Rediscoveryof Nullification and Secession in American Political Rhetoric: Frivolousness Incarnate,or Serious Arguments to Be Wrestled With?, in Nullification and Secession in ModernConstitutional Thought 10, 38-39 (Sanford Levinson ed., 2016); see also Nicoletti,supra note 1, at 120.

20 Bruce Ackerman, 2 We the People: Transformations 99-119 (1998).



throughout the Civil War.21 Holding to the view that Confederatestates committed "state suicide" leads to a similar contradictionwith Republican principles-that those states and their votes had tobe counted in the ratification of the Reconstruction amendments.Without being readmitted to the Union, how could states thatdiscontinued their existence be counted in the ratification process?

Modern commentators have fared no better than theirpredecessors in the nineteenth century in trying to cut the Gordianknot of the status of the former Confederate states. Some revertsimply to the acceptance of "trial by battle" as the agent ofconstitutional change.22 But even accepting this premise, thisexplanation leaves out any account of precisely how military victoryand political coercion led to constitutional change. What was themechanism by which events outside the legal system could result inchanges in legal doctrine within it? So, too, the attempt by ProfessorBruce Ackerman to assimilate political and legal developments inReconstruction to a process analogous to constitutional amendmentleaves out how the particular decisive event he identifies-President Andrew Johnson's resounding loss in the congressionalelection of 1866-could be analogized to approval by two-thirds ofeach house in Congress and ratification by three-quarters of thestates.23 To be sure, the election of 1866 set the stage for ratificationof the Fourteenth and Fifteenth Amendments, but the ThirteenthAmendment had been ratified before the election, and undersimilarly coercive terms. At the time, only a few of the Confederatestates were represented in Congress and those who were notrepresented were forced to ratify the amendment as a condition ofregaining their seats.24

Three features of that era demand explanation: first, why theillegality of state secession became a foregone conclusion withoutbeing articulated in a canonical source of law; second, why it tooknearly four years for this conclusion to become accepted in formal

21 See John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. Chi. L.Rev. 375, 419-57 (2001).

22 See supra note 19 and accompanying text.23 See Ackerman, supra note 20, at 209-10.24 Harrison, supra note 21, at 407-08.



law; and third, why the opinion that accomplished this acceptance,Texas v. White, did so in such poorly reasoned fashion.

The answers to these questions from a legal positivist perspectivefollow directly from the central role of the rule of recognition as asocial practice. First, a social practice has an inchoate, uncertaincharacter, far divorced from the artificial certainty of legal doctrine.Second, it takes some time to resolve uncertainty in the rule ofrecognition by changing legal doctrine. This requires a mixedprocess that gradually moves from a social practice distinct fromlaw to rules accepted and articulated by the officials of a legalsystem, primarily judges, but other officials and citizens as well. Andthird, an opinion accepting changes in the rule of recognitionsucceeds only by success-by its acceptance going forward ratherthan its justification looking backward. Such a prospective take onTexas v. White does far more to explain its efficacy than aretrospective analysis of the unstable reasoning offered in theopinion itself This essay proceeds in three parts corresponding tothese three questions and the answers to them.

I. THE RULE OF RECOGNITION AS A SOCIAL PRACTICE

Ever since its publication over 50 years ago, The Concept of Lawhas dominated discussions in Anglo-American jurisprudence, asmuch in renewing the tradition of legal positivism as in generatingdisputes over it. That discussion has focused largely on the rule ofrecognition as the basis for a legal system in social fact rather thanin freestanding natural law. For Hart, "the rule of recognition existsonly as a complex, but normally concordant, practice of the courts,officials, and private persons in identifying the law by reference tocertain criteria. Its existence is a matter of fact."25 The fact of therule's existence breaks down into two components: first, that "thelaws which are valid by the system's tests of validity are obeyed bythe bulk of the population," and second, that there is "a unified orshared official acceptance of the rule of recognition."26 Debate hasswirled over each of these elements, and as noted earlier, also over

25 Hart, supra note 9, at 110.26 Id. at 114-15.



whether the content of the rule of recognition does or mustincorporate moral standards and values.27

The factual nature of the rule of recognition has largely escapedcontroversy, however. Even those who assign a large role to politicalmorality in identifying the valid laws of a legal system maintain thatthe ultimate test for validity depends, at least in part, on the socialfact of an existing practice.28 Only strict natural law theorists andfollowers of Professor Hans Kelsen give no role at all to socialpractices at the foundation of a legal system. Kelsen, in particular,reduces the role of the rule of recognition to a mere presupposition,which need not be accepted by anyone; it need only serve as ahypothetical "basic norm" that would provide a test for validity forall the other norms in a legal system if it were accepted.29

Strict natural law theorists make law depend upon therequirements of morality, again, whether or not they are actuallyaccepted in a society.30 Virtually all other philosophers agree withHart in assigning a factual dimension to the rule of recognition or itsequivalent.31 They make the other norms of a legal systemdependent upon a matter of social fact, and as social fact changes, sodo the legal norms that it recognizes as valid.

If the legal theorists are right in following Hart, then they haveprovided a ready explanation for a conundrum that has troubledconstitutional theorists, especially in accounting for thequestionable process that led to the ratification of theReconstruction amendments. They can get around the problemsposed by the process of ratification of the Reconstructionamendments, and the related difficulties with the opinion in Texas v.White, simply by categorizing the fundamental changes in theAmerican constitutional structure wrought by the Civil War andReconstruction as resolving a dispute over the rule of recognition-the social practices of American society-not changes inconstitutional law alone.

27 Id. at xxxviii-xliv (introduction by Leslie Green).28 Ronald Dworkin, Law's Empire 62-65 (1986).29 Hart, supra note 9, at 292-93.30 Id. at 186-88.31 See supra notes 28-30 and accompanying text.



Before the war, secession could be supported by the compacttheory of the Union, which gave the states the right to secede in thesame way that an independent nation could withdraw from a treaty.The opposing nationalist theory derived the powers of the Uniondirectly from the people, independent of the states and theircontinued allegiance. The Civil War resolved this dispute over statepower under the rule of recognition, and constitutional law had tochange accordingly.

Some might object that the Constitution is, by its own terms, therule of recognition of the American legal system. It does declareitself in Article VI to be "the supreme Law of the Land,"32 but thatprovision more plausibly makes the Constitution supreme overother conventional sources of law than transforms it into a rule ofrecognition. The latter alternative would beg the question where theauthority for Article VI (and the rest of the Constitution) comesfrom. The widely accepted answer to that question rests the originalConstitution on a delegation of power from the people actingthrough state conventions.33 The Tenth Amendment accepts thispoint in reserving the "powers not delegated to the United States bythe Constitution, nor prohibited by it to the States, .. . to the Statesrespectively, or to the people."34 This basic principle of Americanfederalism requires that the Constitution cannot be the whole of therule of recognition. But if it is only part, then it must be reconciledwith the other elements of the rule of recognition, leading to theconclusion that some superior source of law reconciles all theconstitutional and non-constitutional elements of the rule ofrecognition. The incompleteness of the Constitution takes on otherforms as well, most obviously in leaving open fundamentalquestions of interpretation, like the legality of secession.

For these reasons (among others that could be multiplied), mostconstitutional theorists treat the fundamental law in a legal systemas a political act, which cannot be judged by the ordinary standardsof legal validity.35 In this respect they agree with Hart in treating the

32 U.S. Const. art. VI, cl. 2.

33 Michael J. Klarman, The Framers' Coup: The Making of the United StatesConstitution 415-16 (2016).

34 U.S. Const. amend. X.35 See supra note 33 and accompanying text.



existence of the rule of recognition as a social fact (albeit by anothername). Nor do they disagree with Hart's analysis of this social fact asa combination of acceptance by public officials and compliance withthe resulting regime by the people as a whole. Most theorists viewconstitutional law as embedded in and derived from social practicewith superior authority over standard sources of legal doctrine.36Where they might balk is in resorting to the rule of recognition, orits equivalent, to decide hard questions of constitutional law. "Here,"Hart maintains, "all that succeeds is success."3 Appealing to the ruleof recognition might offer an all-too-easy way around the text of theConstitution, established precedent, and other standard sources oflaw.

Such an evasion of orthodox legal reasoning appears all the moreproblematic because of the amorphous nature of the rule ofrecognition. Attempts to formulate the rule of recognition for theAmerican legal system, even in schematic form, have foundered overthe difficulty of capturing the dividing line between the powersreserved to the states and the people and those delegated to thefederal government. The rule of recognition, as noted earlier, mustprovide for both.38 The search, however, for the canonical form ofthe rule of recognition underestimates the degree to which it isgenerated by social practice. Just as isolated instances of customarylaw can be identified and debated in the absence of a comprehensiveaccount of their source, the same could be true of the rule ofrecognition. In the case of secession, we could say that the rule ofrecognition left open the legality of secession in antebellum law andthat it was altered after the Civil War to close off this question.

Some might still object that this claim cannot be fully understoodor analyzed apart from a complete restatement of the rule ofrecognition. Yet desirable as a comprehensive account of the rule ofrecognition might be, it is not strictly necessary. The crucial featuresof the rule of recognition for one question might have little to dowith its features bearing on another. Insofar as it legitimizes judicial

36 See Frederick Schauer, The Force of Law 79-89 (2015) (also emphasizing the roleof force in gaining acceptance of the rule of recognition).

37 Hart, supra note 9, at 153.38 See Kent Greenawalt, The Rule of Recognition and the Constitution, in The Rule of

Recognition and the U.S. Constitution, supra note 11, at 23-25.



review, for instance, the rule of recognition has little to say abouthow that power should be exercised to determine the legality ofsecession. In fact, the real problems arise from the translation of therule, based on custom and practice, into the formalities of legaldoctrine. This process, as we shall see in the next section, involvesboth the need for official acceptance of the rule and drawing out theimplications of the rule for ordinary sources of law, such as thedecision in Texas v. White.

II. RESOLVING DISPUTES OVER THE RULE OF RECOGNITION

Hart characterized the rule of recognition as one that imposed aduty on government officials to follow the lawmaking process andthe sources of law that it identified.39 Scholars have subsequentlyquestioned whether duty alone can fill the gap between the rule ofrecognition and legal doctrine, arguing that legal power to changethe law must also be conferred on government officials to give thelegal system the flexibility it needs as a union of primary rules ofconduct and secondary rules of change.40 However this debate isresolved, it does point to the need to draw out the implications ofthe rule of recognition for conventional sources of law, if only toconfirm that government officials actually accept the rule. If they didnot, then the changed rule would not meet the first of the twoconditions for its existence. Legal officials, and particularly judges,signal their acceptance of the rule through official statements oflegal doctrine.

The process of clarifying the rule of recognition thereforebecomes intertwined with changes in the law authorized by the rule.Whether this process proves to be successful is, so to speak, a mixedquestion of law and fact. Clarifying the rule of recognition withoutany consequences for ordinary sources of law would be entirelypointless. It would not support any new understanding of the rulesof the legal system.

3 Hart, supra note 9, at 100-02.40 Stephen Perry, Where Have All the Powers Gone? Hartian Rules of Recognition,

Noncognitivism, and the Constitutional and Jurisprudential Foundations of Law, in TheRule of Recognition and the U.S. Constitution, supra note 11, at 295-297. See generallyid. at 295-326.



Even without Texas v. White, the illegality of secession plainly waspresupposed by the provisions of the Fourteenth Amendmentrequiring congressional approval of any pardon to formergovernment officials who "engaged in insurrection or rebellion"against the United States,41 and invalidating "any debt or obligationincurred in aid of insurrection or rebellion against the UnitedStates."42 Changes in the rule of recognition, or clarification of itsterms, must become manifest in standard sources of law, even ifjudges and other public officials do not candidly articulate exactlyhow, or why, the rule has changed.

It follows that the standard sources do not provide a completelysound foundation for judicial decisions resolving disputes over therule of recognition. If they did, the dispute would only be over asubordinate source of law derived from the rule of recognition. InReconstruction, existing constitutional provisions and constitutionaldecisions did not even provide a completely sound foundation forthe Reconstruction Amendments, as demonstrated by theirregularities in the process of adopting those Amendments.43Justification for a decision clarifying the rule of recognition, as Hartemphasized, must look forward to acceptance rather than backwardtowards preexisting sources of law.44 If the prospective andretrospective views generally coincided, there would be no disputeover the rule to be resolved. Presenting a prospective resolution asthe result of a retrospective justification, as judicial opinionscommonly do, cannot be taken as confirmation that no change in therule to clarify its terms occurred. On the contrary, the rhetoric ofcontinuity with the past often has been employed to promoteacceptance of changes going forward.45

The susceptibility of judges to this rhetorical strategy explains thenotorious gaps in the reasoning in Texas v. White. Foremost amongthem is the glaring inconsistency between relying on the Articles ofConfederation, which established a "perpetual union" and required a

41 U.S. Const. amend. XIV, § 3.42 Id. § 4.

43 See supra notes 19-23 and accompanying text.

44 Hart, supra note 9, at 272.4s Id. at 273-75.



unanimous vote among the states for amendment,46 and theConstitution, which declared a "more perfect Union,"4? but requiredratification by only nine states to go into effect (and similarlyrequired ratification of subsequent amendments by only threequarters of the states).48 Other defects can be added, such as thereliance on the Preamble to the Constitution for the phrase "moreperfect Union" instead of some operative provision in theConstitution.49 Many commentators have also criticized the opinionfor distinguishing between the existence of a state and the existenceof a government "competent to represent the State in its relationswith the National Government."o This distinction raises thepossibility that a state can continue to exist without an appropriategovernment, and indeed, this is how the Court characterized thestatus of Texas during the Civil War. In name, it remained a state inthe Union, but without the rights and powers of the states not inrebellion. "All admit that, during this condition of civil war, therights of the State as a member, and of her people as citizens of theUnion, were suspended."1 Yet if Texas could remain a state withouta lawful government, presumably it could remain a state withoutany government at all-even if it descended into anarchy. Thisreasoning presses far beyond the usual understanding of a "state" asan organized government exercising sovereignty over identifiedterritory and the population within it.52 The Court just deletes theelement of a government from the ordinary conception of a state.

These familiar objections to the reasoning in Texas v. White didnothing, however, to impair the authority of the opinion'spronouncement on the indestructibility of the states and the union.Nor should they have. We should not expect airtight arguments forchanges in the law that jettison potentially valid legal argumentsbased on previously accepted legal authority. If the Civil War made

46 Articles of Confederation of 1781, pmbl. & art. XIII.

47 U.S. Const. pmbl.48 U.S. Const. art. V.49 See District of Columbia v. Heller, 554 U.S. 570, 578 n.3 (2008).50 Texas v. White, 74 U.S. (7 Wall.) 700, 19 L.Ed. 227,238 (1868).

51 Id.52 See id. at 236. But see Restatement (Third) of the Foreign Relations Law of the

United States § 201 (Am. Law Inst. 1987).



the illegality of secession a foregone conclusion, then it effectivelyerased the previous basis for secession in accepted legal sources. Itswept those arguments off the table, so much so that the Court inTexas v. White asserted it need not address the legality of secession"at length."53 Likewise, the defendants' argument turned "entirelyupon the validity of the possession of the bonds" by the third-partypurchaser.5 4 The Court did not focus upon the question of secession,largely because it could not-because any significant dispute overthe rule of recognition, by definition, opens up a gap withpreexisting law and erodes the reliability of preexisting legalsources. Those sources that do not support the resolution of thedispute simply are ignored or misconstrued. The Court employedboth strategies in Texas v. White.

The compact theory of the Constitution, in which the statesentered into it as sovereigns with the right to withdraw, simplyreceived no attention from the Court. Yet if the outcome of the CivilWar swept such arguments off the table, it left on the table many ofthe components of the antebellum constitutional order, especiallythe continued sovereignty of the states. For reasons mentionedearlier, state sovereignty could not easily be reconciled with theexigencies of Reconstruction.

That became clear as the Supreme Court repeatedly refused todecide the merits of the legality of secession or the constitutionalityof Reconstruction. Those cases, like the high-profile prosecution ofJefferson Davis, created the risk of detracting from rather thanadding to acceptance of the consequences of Union victory. Howeverthose cases were decided, they would either give a victory tosouthern opponents of Reconstruction or diminish northernsupport by departing from the rule of law. Instead the Court settledfor a series of opaque rulings whose meaning and significance arestill debated today.55 By contrast, Texas v. White sent a much clearersignal, even if it was based on much weaker legal reasoning.

53 White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 237.

s4 Id. at 229.

55 See Ex Parte McCardle, 74 U.S. 506, 515 (1868) (no appellate jurisdiction); Ex ParteYerger, 75 U.S. 85, 106 (1868) (only jurisdictional issue addressed); Georgia v. Stanton,73 U.S. 50, 77 (1867) (no jurisdiction in equity over political question); Mississippi v.Johnson, 71 U.S. 475, 501 (1866) (no jurisdiction in equity to enjoin discretionary actsof the president).



III. CONSEQUENCES AS JUSTIFICATION

As Nicoletti documents in detail, critics of the opinion in Texas v.White, beginning with Justice Grier's dissent, attributed the defectsin the opinion to the Court's failure to candidly acknowledge theverdict of trial by battle.56 The opinion did not, on this view, make avirtue of necessity by admitting that it could not find the resourcesfor its decision in existing legal doctrine, but instead showed itswillingness to have its virtue all too easily compromised.

The Court papered over gaps in the law in a semblance ofconventional legal reasoning. It did not admit that it was changinglegal doctrine, apparently out of fear that candor would impede itssuccess in accomplishing any change.57 On this view, simplycharacterizing the Court's reasoning in modern positivist terms asresolving a dispute over the rule of recognition does little to dispeldoubts about it.

A sustained analysis under the rule of recognition, however, leadsto the opposite conclusion: that the rule of law, so far from beinginconsistent with trial by battle, depended upon it as the foundationfor a new constitutional settlement. On this interpretation, theopinion in Texas v. White implicitly acknowledged the changedsocial and political context of constitutional law after the Civil Warand promoted acceptance of that change as a necessary element ofaltering the rule of recognition and drawing out its implications forlegal doctrine.

The widely criticizeds8 deficiencies in the opinion result from aretrospective look at its basis in conventional legal sources, when acorrect appreciation of the decision requires a prospectiveexamination of its consequences. Relying on the Articles ofConfederation hardly supports interpretation of the Constitution,when it was the latter that unceremoniously displaced the former.An attempt to clarify the rule of recognition must be aimed at

56 See supra note 3 and accompanying text; White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at241-42 (Grier, J., dissenting).

57 See White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 237-38.58 See, e.g., Norman W. Spaulding, Constitution as Countermonument: Federalism,

Reconstruction, and the Problem of Collective Memory, 103 Colum. L. Rev. 1992, 2040-43 (2003) ("However significant its contribution to sectional reconciliation, the fictionof Texas v. White posed a basic paradox for Reconstruction . .. .").



securing widespread official acceptance and popular obedience,which is what actually resulted from Texas v. White. The opinion wasitself part of the process of changing the rule. Despite objections toits reasoning, it elicited no widespread reaction that prevented itfrom becoming the canonical statement of state and nationalsovereignty.59

The absence of objections partly resulted from the relativeobscurity of the merits of the dispute, which concerned the rights ofprivate individuals who had purchased United States bonds fromTexas during the Civil War.60 That issue would have been of interestto investors who held government bonds and who might have beenseriously worried about their rights to bonds that they purchasedon the open market. The holding on this issue put indirectpurchasers of bonds in the position of those who had purchasedtheir bonds directly from Texas, because the bonds had become dueduring the Civil War. These holders were plainly on notice that thebonds were sold to finance the secessionist government of Texasand that the sale could be invalidated for that reason.

During the War, according to the Court, the secessionistgovernment lacked the authority to sell bonds in furtherance of theConfederate war effort.61 But the Court reasoned that because thebonds were then mature, the indirect purchasers could not invokethe good faith purchaser rule that typically protected other holdersof negotiable instruments; they could not insulate their indirectpurchases from the invalidity of the initial direct purchase sale ofthe bonds from Texas.62

All this sounds-and is-highly convoluted and it bears only adistant relationship to the jurisdictional holding that Texas, throughits reconstructed government, could invoke the original jurisdiction

59 See New York v. United States, 505 U.S. 144, 162 (1992) ("In Chief Justice Chase'smuch-quoted words, 'the preservation of the States, and the maintenance of theirgovernments, are as much within the design and care of the Constitution as thepreservation of the Union and the maintenance of the National government. TheConstitution, in all its provisions, looks to an indestructible Union, composed ofindestructible States."' (quoting White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 237)).

60 White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 227-28.61 Id. at 239-40.62 Id. at 239-41.



of the Supreme Court.63 Strictly speaking, the jurisdictional holdingdid not require the Court to opine on the existence of "anindestructible Union, composed of indestructible States." The Courtcould simply have held that, regardless of the status of Texas duringthe Civil War, it had the status of a state by reason of itsreconstructed government after the war. It was only then that Texasbrought this case against the bondholders. That conclusion wasentirely consistent with the holding on the merits that thesecessionist government of Texas lacked authority to sell the bondsin furtherance of the Confederate war effort.

Curiously, however, the holding that relegated good faithpurchasers to the status of direct purchasers was subject to "gravedoubt" within six years and explicitly overruled ten years later.64Undermining the good-faith purchaser rule evidently caused greaterconcern than rejecting the arguments for secession in a poorlyreasoned dictum. The survival of the dictum seems to have resultedfrom the obscurity of the merits. Participants in the market forUnited States bonds no doubt worried more about erosion of thegood-faith purchaser rule than the illegality of secession.

The immediate implications of the case soon became divorcedfrom the dictum on secession, which has since had a successfulcareer as an established principle of constitutional law.65 Doubtsabout the logic of the opinion, although voiced repeatedly over theyears, never led to questions about the validity of the dictum, whichsoon acquired a life of its own.

The afterlife of Texas v. White conforms quite closely to Hart'saccount of how resolution of uncertainty in the rule of recognition

63 Id. at 238-39.64 Vermilye & Co. v. Adams Express Co., 88 U.S. 138, 145 (1874) (expressing "grave

doubt" about the holding relegating good faith purchasers to direct purchasers);Morgan v. United States, 113 U.S. 476, 495-96 (1885) (overruling Texas v. White on thegood faith purchaser question except where the title is acquired with notice of thedefect of title or under similar circumstances).

65 See Poindexter v. Greenhow, 114 U.S. 270, 290-91 (1885); Daniels v. Tearney, 102U.S. 415, 418 (1880); Keith v. Clark, 97 U.S. 454, 461-62 (1878). Recent decisions onfederalism continue to rely upon Texas v. White. Shelby County v. Holder, 133 S. Ct.2612, 2623 (2013) (equal sovereignty of states under the Constitution); Printz v.United States, 521 U.S. 898, 918-19 (1997) (states retained inviolable sovereigntyunder the Constitution); Kohlhaas v. State Office of Lieutenant Governor, 147 P.3d 714,718-20 (Alaska 2006) (secession not proper subject for referendum).



takes hold and becomes integral to a legal system. It does not,however, indicate that the process is instantaneous or free from thecontingencies characteristic of any significant change in the law.

Reducing uncertainty in the rule of recognition as a social practiceby altering determinate legal rules requires more than logicaldeduction. The guiding force of the rule of recognition mightbecome ever more attenuated as the needed changes reach everfurther into the intricacies of the legal system. At such a distance, itmight not guide judges to the dispositive sources in standard legalsources. The rule of recognition does not operate as simply or asdirectly as Hart's original account of the rule suggests.66 Althoughemphasized by critics of Hart, the complexity of the rule ofrecognition does not detract from the central insight behind therule: that it locates the ultimate authority of law in social andpolitical facts. Those facts, although distinct from legal doctrine,nevertheless depend upon it because it constitutes the means forgaining official acceptance and popular obedience to changes in therule of recognition, which are the conditions for its continuedexistence.

The interdependence of the rule of recognition and the legal rulesderived from it enhances, rather than detracts from, the role ofdecisions based directly on the rule of recognition without thebenefit of intermediate sources of ordinary law. Such decisions donot simply draw out the implications of a clarified rule ofrecognition; they also promote acceptance of the changes implicit inclarifying the rule.

This dual role does more than excuse the weak reasoning in Texasv. White. It also explains the overt political appeal in the opinion,most obviously in adopting the argument for perpetual union fromLincoln's First Inaugural Address.67 That address constitutes thecanonical statement of the mainstream Republican justification forfighting the Civil War. The opinion departs from the First InauguralAddress, as it had to do, in referring to state sovereignty only in themost abstract way. In a vain effort to avert the Civil War, Lincolnmuch more specifically conceded state sovereignty over slavery.68

66 See Shapiro, supra note 12, at 245-50.67 See Lincoln, supra note 18, at 264-65.68 Id. at 265-66.



That concession disappeared as the Civil War turned into a war ofemancipation in addition to one to preserve the Union. After thewar, Chief Justice Chase could refer to state sovereignty only in anabstract and conclusory reference to "indestructible States."69

The balance struck in the opinion between "an indestructibleUnion" and "indestructible States" appears to modern eyes to be anearly inscrutable reference to all the issues of federalism that haveanimated constitutional law and politics in this country. At the time,however, it solidified the status of the Reconstruction amendments,which presupposed that the former Confederate states continued tobe states in the Union. Yet it did not cast doubt upon MilitaryReconstruction, so long as the federal occupation of the South didnot purport to destroy the southern states.70 The dictum allowed theCourt to continue to equivocate and evade the constitutionality ofReconstruction, which was essential to exacting compliance in theSouth with the new regime established by the victory of the North.Mixed though the results of Reconstruction were,71 it would nothave achieved even limited success if it had been declaredunconstitutional. The abstract compromise formulated in Texas v.White was an offer that neither side could wholly refuse.

Another feature of the opinion that turns vice into virtue is theseemingly illogical distinction between a state and its government.The Court ruled in favor of a partially reconstructed southerngovernment, reasoning that its efforts to return to normal relationswith the Union were enough to allow it invoke the Court's originaljurisdiction.72 Moreover, those same efforts distinguished it from theprior secessionist government, whose acts in selling the bonds wereinvalid because they were in aid of the Confederate war effort.Although the basis for the distinction in political and legal theorymight be elusive, its impact in Texas v. White was tangible andimmediate. It allowed the State to prevail on both the jurisdictionalissue and on the merits,7 3 and in the process defused any practical

69 White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 237.70 Id. at 237-38.71 See generally Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-

1877, at 602-12 (1988) (discussing mixed results of reconstruction).72 White, 74 U.S. (7 Wall) 700, 19 L.Ed. at 239.73 Id. at 239, 241.



objection to the decision. By 1868, most of the former Confederatestates were deemed entitled to representation in Congress althoughfour, including Texas, were readmitted in 1870.74

In this respect, and in several others, the decision in Texas v.White bears an uncanny resemblance to Marbury v. Madison.75 Justas President Jefferson could not object to the assertion of the powerof judicial review in the earlier case, because his position hadprevailed on the merits,7 6 so too, the former Confederate statescould not object to the result in the later case. Likewise, bothdecisions turned on the arcane issue of the original jurisdiction ofthe Supreme Court, most of whose power lies in its appellatejurisdiction.77 And both decisions twisted the original jurisdictionaround from a straightforward reading of the statute, in Marbury v.Madison, purporting to confer such jurisdiction, and of theConstitution, in Texas v. White, in conferring jurisdiction over claimsby the states. A state, according to the decision, could takeadvantage of this jurisdiction sometimes and sometimes not-depending on the relations between its government and theUnion-even though it always remained a state. The Court remainedequivocal about the exact dimensions of the original jurisdiction.

The ad hoc reasoning in Texas v. White nevertheless formed thebasis for a durable resolution of the tensions between state andnational sovereignty after the Civil War.7 8 No one, with theexception of bondholders who were denied the right to invoke thegood-faith purchaser rule for negotiable instruments, had anythingto complain about. And even those bondholders succeeded in havingthat part of the decision overruled within two decades.79 Aninconspicuous case on the sale of United States bonds might appearto be an unlikely vehicle for clarifying fundamental law, but only ifjudged solely by the standards of conventional legal reasoning basedon existing sources of law. Judged by the prospective standards of

74 Harrison, supra note 21, at 408 (noting that Virginia, Mississippi, and Georgia didnot regain their seats in Congress until 1870).

7s 5 U.S. (1 Cranch) 137 (1803).76 Id. at 162, 173.77 Id. at 173-76; White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 237, 241.78 See supra notes 58-63 and accompanying text.79 Morgan v. United States, 113 U.S. 476, 495-96 (1885).



fostering acceptance and obedience to the changed legal order, onthe other hand, Texas v. White offered an auspicious occasion tomake this change official.

CONCLUSION

Was the decision in Texas v. White deliberate, inevitable, or lucky?Giving Chief Justice Chase the benefit of the doubt, we might find thechoice of this case to declare the indestructibility of the Union to bean act of inspired statesmanship. Or, given the widespread belief,then and now, that the illegality of secession was the verdict of theCivil War, we might find it inevitable that the Supreme Court wouldcome to the same conclusion. Or we might say that the confluence ofevents and actions, both inside the law and outside it, made theoutcome highly contingent. Perhaps Grier's dissent had been aslikely to become the law as Chase's majority opinion.

Nicoletti does not make a choice among these alternatives,although the first accords with her general suspicion of Chase'smotives,80 especially in light of his ambition to become president.81Indeed, his near quotation of Lincoln's First Inaugural in Texas v.White might have betrayed an ambition to deliver his own inauguraladdress. The Court had, after all, heard a number of cases in which itcould have ruled on the legality of secession. One of them, Ex parteMcCardle,82 was handed down the same day as Texas v. White, withanother majority opinion written by Chase. The Court also delayedthe decision in Ex parte McCardle and confined its holding to anarrow jurisdictional issue.83 The Court employed the same tactic ayear later in Ex parte Yerger,84 in yet another opinion by Chase.Those delaying tactics cleared the way for deciding the legality ofsecession with a grand dictum in an otherwise inconspicuous case.In this context, ironically enough, Chase's opinion in Texas v. Whitebecomes, as in Marbury v. Madison, an astute manipulation of

80 Nicoletti, supra note 1, at 194-95.81 Michael Les Benedict, Salmon P. Chase and Constitutional Politics, 22 Law & Soc.

Inquiry 459, 460, 478-79 (1997) (reviewing John Niven, Salmon P. Chase: A Biography(1995)).

82 74 U.S. 506, 506-09 (1868) (discussing application of writ of habeas corpus).83 See Ackerman, supra note 20, at 226-27.84 75 U.S. 85, 104-06 (1868).



political cross-current, ostensibly to carry out the "duty of thejudicial department to say what the law is."85

Of course, no matter how opportunistic we find Chase to be,circumstances had to favor his strategy, both in presenting him withthe issue of the legality of secession and in generating a promisingcase in which to resolve it. If Union victory in the Civil War made theillegality of secession a fait accompli, then it was a legal principlesimply waiting to be recognized in legal doctrine.

On the other hand, exactly how it would be recognized dependedupon the vicissitudes of the shifting politics and judicial decisions inReconstruction. Even Chase could not control the cases broughtbefore the Supreme Court, which at the time lacked the discretioninherent in the writ of certiorari.86 If we accept the need for the legalsystem to adjust to a change in the rule of recognition, as almost alllegal theorists do in some form today, all the crucial features of thatadjustment cannot be deduced as a matter of first principles. Attimes like Reconstruction, it is exactly those principles that remainopen to reconsideration and revision.

Other times present other challenges and some might drawimplications from Texas v. White for constitutional controversies inother eras. Few such cases, however, would present the starkcontrast, asserted at the time, between "trial by battle" and "the ruleof law." Appeal to the rule of recognition dissolves this contrast, orso I have argued. Whether it could facilitate reconciliation betweensocial practices and legal doctrine in other circumstances remainsan open question. Hart himself thought that judicial decisionsresolving disputes over the rule of recognition were few and farbetween.87 If they became common, the rule of recognition wouldtend to supplant standard sources of law in hard cases, diminishingits value as a foundation for law rather than the law itself Invokingit in the extraordinary circumstances of Texas v. White poses few

85 Marbury, 5 U.S. (1 Cranch) at 177.86 Felix Frankfurter & James M. Landis, The Supreme Court Under the Judiciary Act of

1925, 42 Harv. L. Rev. 1, 1-2 (1928) ("The remedy proposed by the Supreme Court andadopted by Congress was a transference of numerous classes of cases from obligatoryreview by appeal or writ of error to discretionary review by certiorari.").

87 Hart, supra note 9, at 153-54.



such risks. Despite all the criticism that the opinion has received, ithas not been attacked as an instance of judicial overreaching.88

Professor Nicoletti has done a great service in forcefullyreminding us of the live controversy that the decision effectively putto rest. The illegality of secession today, at the distance of a centuryand a half, might appear to be a foregone conclusion, but thisconclusion is more a matter of hindsight than insight into the actorsat the time and their motives. An uneasy lesson of her book is thatthe familiar and seemingly realist assumption that law depends onpolitics has disturbing implications, not just for legal theory but forthe law itself, whenever it is put to the test.

88 New York v. United States, 505 U.S. 144, 162 (1992) (endorsing Texas v. White asone of several decisions which recognized the independent existence of both the statesand the United States).

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